Memorandum
City of Lawrence
Legal Services
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TO: |
Toni Wheeler, Director of Legal Services
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
August 14, 2007
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RE: |
Questions Regarding Ordinance 8077 – Entertainment Venue Licensing |
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I have been asked to answer several questions from Commissioner Chestnut regarding the proposed entertainment venue licensing ordinance. For ease of understanding, I will restate each question and then provide information that I hope answers the question.
Substantial criminal activity is not a term that has a commonly understood meaning in the law, and therefore its meaning is explicitly defined in the ordinance. Under the ordinance there is a general and a per se definition of substantial criminal activity.
One of the most difficult things in drafting any ordinance aimed at nuisance-type behavior is crafting a definition that is general enough to cover all the conduct and scenarios that one wants to cover, but specific enough to meet constitutional muster. The term "vague" or "vagueness" does have a technical meaning in the law. The case of City of Wichita v. Smith, 31 Kan. App. 2d 837 (2003) is instructive regarding what courts look for in a business licensing scheme if vagueness is alleged. The Smith court stated that:
The standard for determining whether a statute regulating business is unconstitutionally vague is a common-sense determination of fairness. If an ordinary person exercising common sense can understand and comply with the statute, it is constitutional. Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). In determining whether an ordinance is void for vagueness, two inquires are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.
31 Kan. App. 2d at 843-44.
The ordinance at issue in the Smith case was a noise ordinance. The part of the ordinance alleged void for vagueness stated:
It is unlawful for any person to make, continue, or allow to be made or continued, any excessive, unnecessary, unusual or loud noise which creates a nuisance or injures or endangers the comfort, repose, health or safety of others, or which interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area unless the making and continuing of such noise is necessary for the protection and preservation of property or the health and safety of some individual.
31 Kan. App. 2d at 840.
The Smith court upheld the Wichita ordinance against the vagueness attack. Perhaps the primary reason it was upheld was the inclusion of a "reasonable person" standard. Under the law, such a standard is generally construed to provide an objective, if not overly precise, means of measurement. This same standard is used throughout many areas of the law. For example, the touchstone inquiry if a person is alleging self defense as a defense in a criminal case is whether his or her use of force was reasonable in the circumstances. Public nuisance laws are even more general than the ordinance language, regulating against any condition that negatively affects the health, safety or welfare of the community.
Likewise, the general definition of substantial criminal activity relies on the reasonable person standard to save it from invalidity. In addition, the proposed ordinance includes a per se scoring system which tallies up the amount of criminal offenses, based upon severity levels and frequency, to determine whether substantial criminal activity has taken place. This was included primarily to assist in defending against a vagueness attack. If the general definition were to be declared void for vagueness, a court could issue an opinion limiting the application of the ordinance to the per se definition. It is clear, however, that the law does not require that standards be defined with mathematical precision.
Of course, from a policy perspective, when a licensee says that an ordinance is vague he or she may not be alleging it is illegal, but instead may be stating that the standard of conduct is not specific enough for his or her comfort. In my mind, the close cases are what the adjudicative process is for. If a licensee is alleged to have violated a license due to substantial criminal activity attached to the license premises, he or she always has the opportunity to argue at hearing that it would be unreasonable to classify that criminal activity as substantial. If the licensee prevails, no action is taken.
The answer is not accurately. We probably have sufficient tools, although not overly convenient ones, for estimating the total amount of criminal activity within 500 feet of a business. In order to accurately obtain the numbers used in the ordinance, however, our police officers will need to receive additional training. Although a person's association with an entertainment venue as a customer or employee is sometimes noted in criminal reports involving events around the venue, it is not always important currently to note that information so it will not necessarily have been captured in previous cases. Because only criminal events involving patrons, employees, independent contractors or owners are counted under the ordinance, it will be necessary for the police to slightly expand the scope of their investigations in some cases to determine where someone is coming from or going to an entertainment venue or is otherwise associated with it. Therefore, I do not think that we will be able to produce historical information that would allow us to determine where each business would be under the proposed ordinance if it had been enacted last year, for example.
If licensing actions are aggressively pursued, I would fully expect this ordinance to be tested judicially at some point. The ordinance was drafted with an eye towards surviving such an attack. There is always a chance, however, that the law will change or someone will come up with a novel argument that I have been unable to anticipate and we will lose all or part of the ordinance.
With that being said, however, I think it is far more likely than not that this ordinance would survive legal challenge. Unlike the smoking ordinance, I doubt that any case under it would be fast-tracked to the Kansas Supreme Court because there are no specific provisions of Kansas law at issue and the general idea of business licensing is neither new nor controversial. As with anything else, however, I could be wrong about the treatment it would receive from the courts.
4. Is there anything like this licensing scheme in other communities?
This ordinance is Lawrence specific. It was built from "scratch" with our City's interests in mind. Many other communities, however, do have entertainment venue licensing of one sort or another. Our closest neighbor with such an entertainment venue licensing scheme is Olathe. Olathe’s ordinance is very different from our proposed ordinance, however, because it imposes a lot of conditions on licensees on the front end of the licensing process while the proposed ordinance imposes no real restrictions at the outset. Many other cities, like Denver and San Francisco for example, have entertainment venue licensing as well.
One objection that has been leveled against this idea is that none of Lawrence's peer cities have anything similar. The problem with evaluating this claim is that nobody has offered at a solid definition of Lawrence’s peer cities except for the suggestion that we should compare our City to cities with vibrant music scenes. Relying on this as the sole factor of comparison with other cities is probably overly simplistic because the specific public safety challenges that face each city are not part of the analysis. Without coming up with a consensus definition of peer city, it is difficult to do any through comparison.
In addition, many cities have general business licensing that would prohibit a business from creating a nuisance. Topeka, for example, licenses many types of businesses. Such ordinances are much more than what we have proposed, but could have the same effect.
I have included an appendix with some ordinances from other cities for review.
If I can provide further assistance, please feel free to call on me.